Citation Nr: 21013149 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 15-31 092 DATE: March 8, 2021 ORDER Entitlement to service connection for hypertension is granted. FINDINGS OF FACT 1. The Veteran was presumptively exposed to herbicide agents during his active service based on his service in the Republic of Vietnam during the Vietnam era. 2. The Veteran’s diagnosed hypertension is etiologically related to his exposure to herbicide agents during active service. CONCLUSION OF LAW The criteria for service connection for hypertension are met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1969 to November 1970, to include service in the Republic of Vietnam. Unfortunately, the Veteran died in September 2020. The appellant is his surviving child. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2007 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, this matter was previously before the Board in August 2018 and November 2019. In August 2018, the Board remanded the issue of service connection for hypertension to provide the Veteran a VA examination. In November 2019, the Board remanded the matter to obtain a VA medical opinion. The Board notes that the Veteran requested a Travel Board hearing in his July 2008 VA Form 9, which he then changed to a videoconference hearing request in August 2008. However, the Board’s records reflect that the Veteran withdrew his request for a hearing in August 2016. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the appellant and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for hypertension Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may alternatively be established on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. See 38 C.F.R. § 3.310(b); Allen v. Brown, 8 Vet. App. 374 (1995). Any amount of aggravation is sufficient to establish secondary service connection; permanent aggravation or worsening of a non-service-connected disability is not required. See Ward & Neal v. Wilkie, No. 16-2157, 17-1204 (Vet. App. 2019). The Veteran’s diagnosed hypertension (a cardiovascular-renal disease) is considered by VA to be a “chronic disease” as listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Where a veteran served ninety days or more of active service, and certain chronic diseases, such as hypertension, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. VA regulations provide that hypertension for VA purposes means that the diastolic blood pressure is predominantly 90 or more or systolic blood pressure is predominantly 160 or more. Hypertension must be confirmed by readings taken two or more times on three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Certain diseases are associated with herbicide agent exposure and shall be service-connected if a veteran was exposed to an herbicide agent during active military, naval, or air service, if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. See 38 C.F.R. § 3.309(e). As pertinent here, however, hypertension is not among the enumerated diseases under 38 C.F.R. § 3.309(e); therefore, presumptive service connection based on herbicide agent exposure is not for application. Despite this, the instant Veteran may still establish service connection with proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1041-42 (Fed. Cir. 1994). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Here, the appellant asserts that service connection for hypertension is warranted, to include as secondary to the Veteran’s service-connected posttraumatic stress disorder (PTSD). As an initial matter, the Board notes that, prior to his death, the Veteran was diagnosed with hypertension. See January 2008 letter from K.D.; August 2010 VA examination report; June 2020 VA medical opinions. Therefore, a current disability is established. Next, the Board finds that the Veteran was presumptively exposed to herbicide agents during his active service in the Republic of Vietnam during the Vietnam era. See DD-214. Accordingly, an in-service event is established. Thus, the question remaining before the Board is whether there is competent evidence of a nexus between the Veteran’s in-service exposure to herbicide agents and his hypertension, or whether his hypertension was caused or aggravated by his service-connected PTSD. On review, the Board finds that the preponderance of the medical evidence weighs in favor of the appellant’s claim. In the June 2020 VA medical opinion as to direct service connection, the VA examiner opined that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The June 2020 VA examiner provided the following rationale: “Claimant was active duty 5/14/69-11/19/70 and served in Vietnam. It was noted that exposure to herbicide was conceded. High blood pressure is not equivalent to hypertension. High blood pressure is a reading on a sphygmomanometer. High blood pressure is a natural physiological phenomenon throughout the day, and blood pressure naturally rises for various factors including anxiety, stress, pain, etc. Hypertension on the other hand is a disease of chronically elevated blood pressure. It is methodologically incorrect to look at old records and try and determine whether someone should have been diagnosed with hypertension because of sporadic readings of elevated blood pressure. Hence hypertension is established/diagnosed when a physician seeing the patient diagnoses it. Records show claimant was diagnosed with hypertension around 2005-2006. This is based on primary care records in 2002 and 2004 stating no hypertension, and C&P exam 8/20/10 stating hypertension diagnosed about 5 years prior, and earliest record found of medication for treatment of hypertension in 2006 (treated with atenolol). This is approximately 35 years after end of active duty. However, I also note claimant does lack many of the typical and accepted risk of hypertension. He is caucasian, and not obese. There is no documentation of family history significant for hypertension[.] At the time of diagnos[i]s, claimant is approximately 56 years old. The NIHANES survey suggests his prevalence just as a white male between 40-59 years old as 24%. Also, Update 11 of Veterans and Agent Orange moved Hypertension to ‘sufficient evidence of an association’. It is [because of] the lack of any obvious traditional risk factors with his conceded exposure to Agent orange that my opinion is at least as likely as not hypertension is related to inservice [exposure].” The Boards finds the June 2020 VA medical opinion adequate and highly probative as it was authored by a medical doctor who considered the Veteran’s medical history and risk factors and gave due consideration to applicable medical literature. For these reasons, the Board finds that service connection for hypertension is warranted. The appeal is therefore granted. Having granted the appeal on a direct basis, the Board need not consider the appellant’s alternative theories of entitlement. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.